G.S Singhvi, J.:— Award dated 9.9.1994 passed by Industrial Tribunal-cum-Labour Court, Gurgaon for re-instatement of respondent No. 1 with continuity of service and full back wages has been made subject matter of challenge in this writ petition filed by the Haryana Roadways Engineering Corporation Limited, Gurgaon, (hereinafter referred to as ‘the Corporation’).

2. Respondent No. 1 was appointed as Assistant Carpenter on 31.1.1983 on officiating/temporary basis. After the formation of the Corporation, his services were transferred to the Corporation w.e.f 27.11.1987 On 16.6.1988, respondent No. 1 was suspended and was served with a charge-sheet with the allegations of unauthorized absence from duty. A departmental inquiry was held by the petitioner-Corporation and ultimately service of respondent No. 1 was terminated w.e.f 1.5.1989

3. Respondent No. 1 raised a dispute against the termination of his service. Vide notification dated 12.10.1989 the Government of Haryana made reference of the dispute to the Industrial Tribunal-cum-Labour Court, Gurgaon. Before the Labour Court, respondent No. 1 pleaded that his service has been terminated on the basis of an inquiry held in violation of the principles of natural justice and the punishment awarded to him for alleged absence on 2nd and 3rd June, 1988, was arbitrary and unjust. The Corporation contested the claim by pleading that the inquiry was held in accordance with the principles of natural justice and a reasoned order was passed terminating the services of the workman. Parties led their respective evidence and after considering the entire case, the Tribunal recorded a finding that the inquiry held by the Corporation was contrary to the principles of natural justice and the employer had punished the workman without application of mind. On the basis of this conclusion, the Tribunal ordered re-instatement of the workman with continuity of service and back wages.

4. First contention urged by Shri Goel is that the impugned award should be quashed only on the ground that the Tribunal did not give an opportunity to the petitioner-Corporation to adduce evidence on the merits of the allegation levelled against respondent No. 1. Shri Goel argued that the Tribunal was under a duty to call upon the employer to adduce evidence to substantiate the charge levelled against the workman and to support the order of punishment. He relied on the decision of the Supreme Court in Delhi Cloth and General Mills Ltd. v. Ludh Budh Singh, (1972) 1 SCC 595 , AIR 1972 SC 1031 Workmen of Firestone Tyre and Rubber Co. v. Management, (1973) 1 SCC 813 , AIR 1973 SC 1227 and Cooper Engineering Limited v. Shri P.P Mundhe. Mundhe, (1975) 2 SCC 661 , AIR 1975 SC 1900.

5. On the other hand, Shri Aggarwal argued that the Tribunal was under no obligation to give an opportunity to the petitioner-Corporation to lead evidence in support of the allegation because the petitioner did not make any request to the Tribunal to give an opportunity to it to lead evidence in support of the charge levelled against the workman. According to Shri Aggarwal, it was for the employer to make a request for permission to lead additional evidence to support the charge and it was none of the duties of the Industrial Tribunal-cum-Labour Court to suo Page: 690motu to inform the petitioner of its right to adduce evidence.

6. We have thoughtfully considered the rival submissions and in our opinion, Shri Aggarwal's contention that the Tribunal was not required to suo motu given an opportunity to the petitioner to lead evidence deserves to be accepted. In Ritz Theatre (P) Ltd. v. Its Workman, AIR 1963 SC 295 their Lordships of the Supreme Court held that if finding on the preliminary issue, namely, the issue relating to the fair inquiry is against the employer, it is open to the employer to seek permission to cite additional evidence. In State Bank of India v. R.K Jain, 1971 Lab. I.C 13 their Lordships of the Supreme Court considered an argument advanced on behalf of the employer that it was obligatory for the Industrial Tribunal or the Labour Court to call upon the employer to adduce additional evidence to sustain the charges after a formal preliminary order is recorded that either there was no domestic inquiry or the one held was defective. While rejecting this contention, their Lordships held:—

“It should be remembered that when order of punishment by way of dismissal or termination of service is effected by the management, the issue that is referred is whether the management was justified in discharging and terminating the service of the workman concerned and whether the workman is entitled to any relief. In the present case, the actual issue that was referred for adjudication to the Industrial Tribunal has already been quoted in the earlier part of the judgment. There may be cases where an inquiry has been held preceding the order of termination or there may have been no inquiry at all. But the dispute that will be referred is not whether the domestic inquiry has been conducted properly or not by the management, but the larger question whether the order of termination, dismissal or the order imposing punishment on the workman concerned is justified. Under those circumstances, it is the right of the workman to plead that infirmities in the domestic inquiry, if one has been held and also to attack the order on all grounds available to him in law and on facts. Similarly, the management has also a right to defend the action taken by it on the ground that a proper domestic inquiry has been held by it on the basis of which the order impugned has been passed. It is also open to the management to justify on facts that the order passed by it was proper. But the point to be noted is that the inquiry that is conducted by the Tribunal is a composite inquiry regarding the order which is under challenge. If the management defends its action solely on the basis that the domestic inquiry held by it is proper and valid and if the Tribunal holds against the management on that point the management will fail. On the other hand if the management relies not only on the validity of the domestic inquiry, but also adduces evidence before the Tribunal justifying its action, it is open to the tribunal to accept the evidence adduced by the management and hold in its favour even if its finding is against the management regarding the validity of the domestic inquiry. It is essentially a matter for the management to decided about the stand that it propose to take before the Tribunal. It may be emphasised that it is the right of the management to sustain its order by adducing also independent evidence before the Tribunal. It is a right given to the management and it is for the management to avail itself of the said opportunity.”

(Emphasis supplied).

7. In Delhi Cloth and General Mills Company v. Ludh Budh Singh (supra) the Supreme Court once again considered the same issue and while affirming its earlier judgment in R.K Jain's case (supra) their Lordships laid down six principles. Of Page: 691these, principles No. 5 is as under:—

“(5) The Management has got a right to attemp to sustain its order by adducing independent evidence before the Tribunal. But the management should avail itself of the said opportunity by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been availed of or asked for by the management, before the proceedings are closed, the employer can make no grievance that the Tribunal did not provide such an opportunity. The Tribunal will have before it only the inquiry proceedings and it has to decide whether the proceedings have been held properly and the findings recorded therein are also proper”. (Underlining is ours).

8. In Workman of Firestone Tyre and Rubber Company v. Management (supra) their Lordships of the Supreme Court were primarily examining the scope of Section 11-A of the Industrial Disputes Act, 1947. In the process, the Supreme Court exhaustively reviewed the previous decisions and then formulated eight principles of which principle Nos. 4, 6, 7 and 8 are quoted below:—

“(4) Even if no enquiry has been held by an employer or if the enquiry held by him is found to be defective, the Tribunal in order to satisfy itself about the legality or validity of the order, has to give an opportunity to the employer and employee to adduce evidence before it. It is open to the employer to adduce evidence for the first time justifying his action; and

(5) x x x x x x

(6) The Tribunal gets jurisdiction to consider the evidence placed before it for the first time in justification of the action taken only, if no enquiry has been held or after the enquiry conducted by an employer is found to be defective.

(7) It has never been recognised that the Tribunal should straightaway, without anything more, direct reinstatement of a dismissed or discharged employee, once it is found that no domestic enquiry has been held or the said enquiry is found to be defective.

(8) An employer, who wants to avail himself of the opportunity of adducing evidence for the first time before the Tribunal to justify his action, should ask for it at the appropriate stage. If such an opportunity is asked for, the Tribunal has no power to refuse. The giving of an opportunity to an employer to adduce evidence for the first time before the Tribunal is in the interest of both the management and the employee and to enable the Tribunal itself to be satisfied about the alleged misconduct.”

9. In Cooper Engineering Limited v. Shri P.P Mundhe. Mundh (supra) some observations have no doubt been made suggesting that it is the duty of the Industrial Tribunal-cum-Labour court to give an opportunity to the employer to lead evidence but that judgment has been aptly explained in Shankar Chakravarti v. Britannia Biscuit Co. Ltd., (1979) 3 SCC 371 , AIR 1979 SC 1652. In that case, the Supreme Court referred to its earlier decision, including the one given in Cooper Engineering Ltd.'s case (supra) and observed:—

“The point worthy of note is that the contention of the appellant that there is something like an obligatory duty of the Industrial Tribunal to call upon the employer to adduce additional evidence if it so chooses after recording a specific finding on the preliminary issue whether there was no enquiry or the one held was defective has been, in terms and demonstrably negatived. As a corollary a principle was enunciated that such an opportunity should be availed Page: 692of by the employer by making a suitable request to the Tribunal before the proceedings are closed. If no such opportunity has been asked for by the management before the proceedings are closed the employer can make no grievance that the Tribunal did not provide such an opportunity. The ghost of any obligatory duty cast on a quasi-judicial authority, viz. Labour Court or Industrial Tribunal to notify one of the parties to the proceedings before it, what it should do or what are its right and by what procedure it should prove its case, even when the party is a well entrenched employer, ably assisted by the best available talent in the legal profession was laid to rest. We would presently examine Cooper Engineering Ltd. case (1975 Lab. I.C 1441) (S.C) where the employer made some attempt to infuse life into that ghost but that decision rests on the facts of the case. In this case, the fact that before the final order was pronounced by the Tribunal a written request was made on behalf of the employer for adducing additional evidence to sustain the charge on which the appears to have passed no order, was held insufficient, by this court to entertain a contention that the employer was denied any such opportunity.

Their Lordships further observed:—

“We are afraid that much is being read into the observation of this Court which is not either expressly or by necessary implication stated. There is nothing to suggest that in Cooper Engineering Ltd. case this Court specifically overruled the decision in R.K Jain's case (1972 Lab. I.C 13) where the Court in terms negatived the contention of the employer that there is an obligatory duty in law on the labour court or the Industrial Tribunal to give an opportunity to the employer irrespective of the fact whether it is asked for or not to adduce additional evidence after recording a finding on the preliminary issue that either no domestic enquiry was held or the one held was defective. It would be advantageous to refer to an observation of this Court in Delhi Cloth and General Mills Co. case at page 53 (of 1972-3 SCR 29) : (1972 Lab. IC 573 at page 588) whereafter examining the ratio of the decision in R.K Jain's case this Court held that there was no question of opportunity to adduce evidence having been denied by the Tribunal as the appellant therein had made no such request and that the contention that the Tribunal should have given an opportunity suo motu to adduce evidence was not accepted in the circumstances of that case. This observation in fact rejects the contention that there is any such obligatory duty cast by law on the Labour Court or the Industrial Tribunal to give such an opportunity to the employer and then leave it to the sweet will of the employer either to avail it or not. This view in R.K Jain's case was reaffirmed in Delhi Cloth and General Mills Co. case and there is nothing in the decision in Cooper Engineering Ltd. case that case overrules the two earlier decisions”.

Finally their Lordship concluded by saying:—

“When we examine the matter on principle, we would point out that a quasi-judicial Tribunal is under no such obligation to acquaint parties appearing before it about their rights more so in an adversary system which these quasi-judicial Tribunals have adopted. Therefore, it is crystal clear that the rights which the employer has in law to adduce additional evidence in proceedings before the Labour Court or Industrial Tribunal either under S. 10 or S. 33 of the Act questioning the legality of the order terminating services must be availed of by the employer by making a proper request at the time when it files its statement of claim or written statement or makes an application Page: 693seeking either permission to take a certain action or seeking approval of the action taken by it.

xx xx xx xx xx xx

But if no such request is made at any stage of the proceedings, there is no duty in law on the Labour Court or the Industrial Tribunal to give such an opportunity and if there is no such obligatory duty in law failure to give any such opportunity cannot and would not vitiate the proceedings.”

(Under lining is ours)

10. In view of the above enunciation of the law in Shankar Chakravarti v. Britannia Biscuit Co. Ltd. (supra), we do not find any reason to accept the contention of Shri Goel that it was the duty of the Tribunal to have given an opportunity to the petitioner to lead evidence in support of the charge levelled against the workman. The facts of this case show that neither in its reply (Annexure P-10 in the writ petition) nor by any written application or oral request, the petitioner prayed that it may be given an opportunity to adduce evidence in support of the charge levelled against the workman. In the absence of any such request by the employer, the Tribunal was not under any obligation to voluntarily call upon the petitioner (employer) to lead additional evidence.

11. Second contention of Shri Goel is that the Tribunal should not have awarded back wags to the employee. By inviting our attention to the terms of the reference, Shri Goel argued that the Tribunal was under obligation to consider the nature of relief to be given to respondent No. 1 but without examining this aspect, the Tribunal has ordered payment of full back wages. In our opinion, this contention of Shri Goel is without any substance. There can be no doubt that the Tribunal was possessed with the discretion to award appropriate relief to the workman on the basis of its findings that the action taken by the employer against the workman was vitiated due to the violation of the principles of natural justice. It was open to the employer to plead before the Tribunal that the workman was gainfully employed after the termination of his service and therefore, he should not be awarded full back wages. It was also open to the employer to plead that due to its financial incapacity or poor economic condition full back wages may not be awarded to the workman. No such plea was, however, raised by the employer. In the absence of anything to the contrary, the Tribunal was fully justified in awarding the back wages to the employee. The Tribunal Labour Courts are presumed to be aware of the grave consequences of termination of service of a person and also of the agony which an employee suffers due to unemployment. The respondent-workman was thrown out of job after he had served for more than six years and his only alleged fault was that he had absented from duty for two days. That apart, the workman pleaded that he was sick and, therefore, he could not attend the duties. His past performance has not been shown to be poor. Therefore, if by taking into consideration the totality of the circumstances, the Tribunal has exercised its discretion to give relief of back wages to the workman, we find no ground to exercise our certiorari jurisdiction to quash the impugned award.

12. No other point has been argued.

13. For the reasons mentioned above, the writ petition fails and the same is dismissed.

Sd/- T.H.B Chalapathi, J.

R.M.S

Petition dismissed.